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Microsoft-Google to Move Forward with NSA Lawsuit (Updated)

Google-Microsoft FISA Petitions

As the NSA PRISM controversy broke, Google and Microsoft filed petitions with the Foreign Intelligence Surveillance Act (FISA) court challenging gag orders that prevented it from disclosing the nature of information requested of it and supplied to the NSA. Around this time, both companies were signatories to a letter (see below) by leading tech companies to the Administration demanding that

[T]he US government should ensure that those companies who are entrusted with the privacy and security of their users’ data are allowed to regularly report statistics reflecting:

The number of government requests for information about their users made under specific legal authorities such as Section 215 of the USA PATRIOT Act, Section 702 of the FISA Amendments Act, the various National Security Letter (NSL) statutes, and others;

The number of individuals, accounts, or devices for which information was requested under each authority; and

The number of requests under each authority that sought communications content, basic subscriber information, and/or other information.Second, the government should also augment the annual reporting that is already required by statute by issuing its own regular “transparency report” providing the same information: the total number of requests under specific authorities for specific types of data, and the number of individuals affected by each.

As an initial step, we request that the Department of Justice, on behalf of the relevant executive branch agencies, agree that Internet, telephone, and web-based service providers may publish specific numbers regarding government requests authorized under specific national security authorities, including the Foreign Intelligence Surveillance Act (FISA) and the NSL statutes. We further urge Congress to pass legislation requiring comprehensive transparency reporting by the federal government and clearly allowing for transparency reporting by companies without requiring companies to first seek permission from the government or the FISA Court.

Breakdown in Negotiations

Over the course of the summer, the tech giants engaged in prolonged discussions with the Justice Department extending the time to respond to the lawsuits on six separate occasions. The Director of National Intelligence, James Clapper, indicated that the administration would begin releasing its own reports on NSA surveillance activity.

This was seen as too little in response. In a blog post on Friday, Microsoft’s General Counsel Brad Smith explained

We hoped that these discussions would lead to an agreement acceptable to all. While we appreciate the good faith and earnest efforts by the capable Government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure.

Yesterday, the Government announced that it would begin publishing the total number of national security requests for customer data for the past 12 months and do so going forward once a year. The Government’s decision represents a good start. But the public deserves and the Constitution guarantees more than this first step.

For example, we believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an email. These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular email address. We believe it’s possible to publish these figures in a manner that avoids putting security at risk. And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete.

Over the past several weeks Microsoft and Google have pursued these talks in consultation with others across the technology sector. With the failure of our recent negotiations, we will move forward with litigation in the hope that the courts will uphold our right to speak more freely. And with a growing discussion on Capitol Hill, we hope Congress will continue to press for the right of technology companies to disclose relevant information in an appropriate way.

The United States has long been admired around the world for its leadership in promoting free speech and open discussion. We benefit from living in a country with a Constitution that guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest. We believe there remains a path forward that will share more information with the public while protecting national security. Our hope is that the courts and Congress will ensure that our Constitutional safeguards prevail.

Google released a statement that

While the government’s decision to publish aggregate information about certain national security requests is a step in the right direction, we believe there is still too much secrecy around these requests and that more openness is needed. That’s why we, along with many others, have called on the U.S. government to allow us to publish specific numbers” about data request

Facebook’s general counsel, Colin Stretch, said his company has also been urging the government to be “more transparent and open with the public” and issued a statement that

We are deeply disappointed that despite months of negotiations and the efforts of many companies, the government has not yet permitted our industry to release more detailed and granular information about those requests.